The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-28
BEFORE THE HIGHER COURT.
The Argument on Colonel Robertson's
Appeal from Judge Ayres's Decision.
Attorney General Michener's Presentation of
the Legal Position Upon Which the Lieu
tenant Governor Rests His Case.

the Legal Position Upon Which the Lieu
tenant-Governor Rests His Case.
Argument in the case of Green Smith against
Robert S. Robertson, taken on appeal to the SUI
preme Court, was begun yesterday morning be-
fore the FIVE judges constituting the bench. w
II. Il. Miller opened the argument for Colonel
Robertson, the appellant, arguing all the ques-
tions involved and brought before the court be-
low, showing the validity of the election Of Col.
Robertson to the Office of Lieutenant-governor:
Mr. Miller spoke for an hour and half, making
a strong argument He was followed by jason
B. Brown, who appeared for Smith, and who
consumed the remainder Of the forenoon. After
dinner Mr.. Brown resumed his argument. The
hearing is held in the south room of the law IL
brary of the Supreme Court The room was
warm, and as The Eve judges have all arrived
at that period in life when to fall into gentle
nap after dinner Is as natural as for duck
to pop into pond. it looked as if they were
having struggle to keep awake The judges
were ranged in q row and seemed to be listening
very fattentively to Mr.. Browns argument
though from time to time their eyes would close
with suspicious languor Judge Niblack wears
smoked-glass spectacles. SO that while suspected
of somnoiency it would be more difficult to make
a case against him. Doubtless the other four
judges envied him the immunity he appeared to
enjoy.
Mr.. Brown wasi followed by Attorney general
Kitchener, who spoke for Colonel Robertson
To-day Judge Turpie will close for the appellee
and Senator Harrison will have the close for
Colonel Robertson. It is expected that the ar
gument will conclude at noon to-day.
The Attorney Generals Argument.
We present below the argument of Attorney
general Kitchener, for the purpose of giving the
legal positions upon which Colonel Robertson
rests his case:
May 1t Please the Court:
The propositions which will discuss are
L court of equity upon an application for
writ of injunction, will not try the title to an
Office.
2 Nor will such court enjoin an officer de
jure or an officer de facto. or an intruder into
or usurper of an Office, from exercising the duties
of the Office.
g. Nor will it restrain or enjoin the exercise
of executive, political or legislative power by
one charged with the performance Of those
duties.
4. Each department of government is lnde-
pendent of the others; neither department can
control the other, and either may refuse to yield
| to the demands of the other.
S. The Constitution has provided another
forum for the t-ial Of the title to the Office in
question. and its jurisdiction is final, conclusive
| and exclusive.
These propositions will consider in their
| order.
| First, then, we contend that the injunctivo
branch of this action, as well as the action Of
quo warranto ITSELF is for the purpose of testing
or trying the title to the Office in question. It
is clear that this auxiliary remedy would not
have been asked in this case upon any other
basis, or upon any other theory than that the
relator WAS entitled to the Office and to the dis
charge OF its functions It is also. averred in
the complaint that the defendant Colonel
Robertson, is claiming title to and is undertake
| ing to exercise the duties Of the Office Of Lieu
tenant-governor. Now it is the purpose of this
ancillary branch of this case the application for
temporary restraining ORDER to prevent COL
| Robertson from exercising the functions OF
the office ne and and to enable the re.
duties without let or hindrance upon the
part of Robertson. It will not be claimed, ]
think, for one moment. that any court would be
called upon to issue any such order or writ with
ture, at least so attempted, that the reator in
| whose behalf this writ is asked is entitled to
that Office. So, then, by reason of the aver
ments of the petition. and by reason OF the
nature of the case itself, in the issuance Of the
temporary restraining order the court was
called upon to decide in some measure in whom
the title to the Office was vested; and this ques.
ton, we insist is not one of equitable cognizance
or jurisdiction. The whole law upon this sub
ject is thoroughly discussed and admirably pre-
scented by Mr. High in his work on Injunctions
Vol 2, Secs. 3l2 to Bis, inclusive.
In the case of Smith vs.. Myers, which, like
| the injunctive branch of this case, was for the
purpose Of testing or trying the title to this
very Office, this question came in review before
this court and while the court did not decide the
question sQuarely, it is very broadly intinated
khak O,1st hnox f,~~s. 2sAt:-
title to an Office In that case the court said
ut often becomes a question III case Of the gen
eral class to which the present belongs whether
suit for injunction can be maintained in any
and by many courts it ie held that in such case,
there is no jurisdiction" and numerous cases ar,
cited.
will now consider briefly the second propo
sition in the case il Colonel Robertson ia Al
officer de jure he cannot be restrained or On
joined from performing any of the duties O.
functions OF the Office. According to the aver
ments Of this complaint he was voted for at al
election held in November last, and by the off
Ger charged with that duty under the Constitu
ton, the returns of that election were canvasset
and published in the presence Of the House ant
Senate, and Robertson was declared elected t
the office OF Lleutenantgovernor. Now, Their
was declaration by the constitutional officer
charged by the Constitution Of this State will
the performance of that duty, that Robertso,
was elected to the Office of acknowledgements
and this was the exercise of either legislative o
political power. 1t matters not which This con
ferred upon Colonel Robertson at least the prim
facie title of that Office, which, if allowed by th
occupancy of the Office in any degree, as
charged in this complaint makes him the Office
de facto, to say the least Of it Now, ii he
the officer de facto, and If he has been actin
within the purview of the law-and it is no
claimed here that he was violating the law, s
far as the duties Of the Office are concerned
thsn 1t follows as necessary consequence, tia
ne cannot be enjoined from performing III
duties OF that office SO long as be remains in !;
In this connection, will call the attention !
the court to the case of Green va Mumfori
r. l., 472, where it is said: